People ex rel. Dombroski v. O'Connell

• Decision Date: 24 November 1941
• Docket Number: No. 26466.,26466.
• Citation: 378 Ill. 346,38 N.E.2d 40
• Parties: PEOPLE ex rel. DOMBROSKI et al. v. O'CONNELL, Judge.
• Court: Illinois Supreme Court

378 Ill. 346

38 N.E.2d 40

PEOPLE ex rel. DOMBROSKI et al.

v.O'CONNELL, Judge.

No. 26466.

Supreme Court of Illinois.

Nov. 24, 1941.

Appeal from Circuit Court, Cook County; John Prystalski, judge.

Mandamus by the People, on the relation of Bernard Dombroski and others, against John F. O'Connell, probate judge of Cook county, to compel respondent to grant an appeal and to fix amount and conditions of the appeal bond, on the appeal from respondent's denial of relators' petition for appointment of a conservator of the person and estate of their father. From an order of the circuit court dismissing the petition for mandamus, relators appeal.

Reversed and remanded with directions.Hallahan & Merrick, of Chicago (Daniel J. Hallahan, Hubert C. Merrick, and Neal J. Huff, all of Chicago, of counsel), for appellants.

I. J. Berkson, of Chicago (Mayer Goldberg and Irving L. Berkson, both of Chicago, of counsel), for appellee.

STONE, Justice.

Appellants seek review of an order of the circuit court of Cook county dismissing their petition for mandamus against respondent, the probate judge of Cook county. Appellants filed in the probate court of that county their petition for appointment of a conservator of the person and of the estate of their father, Frank Dombroski. The father and two others of his children were made parties defendant. This petition alleged that Dombroski, who was eighty-one years of age and in poor health, and who could not read nor write English, possessed a substantial estate which had for years been handled by his wife who died in 1940; that because of his age and physical and mental incapacity he was incompetent to manage his estate, and prayed that one of the petitioners be appointed conservatrix of his person and that the Merchants Trust Company, or some other disinterested person, be appointed conservator of his estate.

A hearing was had before the appellee as judge of the probate court and the petition was denied. Thereafter, on notice, appellants here sought an appeal to the circuit court and presented for approval an appeal bond. No question of the sufficiency of the bond is raised here. Appellee, as probate judge, denied the prayer for appeal, denied leave to file the bond and refused to fix the amount or conditions of an appeal bond. Thereafter, appellants filed in the circuit court of Cook county a petition for issuance of a writ of mandamus to compel the probate judge, appellee here, to grant an appeal and to fix the amount and the condition of the appeal bond. The appellee filed a motion to strike the petition for mandamus setting forth as grounds therefor, in substance, that appellants had no appealable interest and were not persons aggrieved by the order denying appointment of a conservator within the provisions for appeal as set forth in the Probate Act. The circuit court sustained appellee's motion and dismissed the petition for mandamus. The order of dismissal recites that appellants urged that the denial of appeal to them violated section 29 of article 6 and section 2 of article 2 of the constitution of Illinois, Smith-Hurd Stats.

Appellants appeal directly to this court. They assign as errors (1) that the circuit court erred in dismissing the petition for writ of mandamus; (2) the Probate Act, relating to appeals, and the order denying appellants' right to appeal from the order denying their petition for appointment of conservator, if they are to be construed as construed by the circuit court and the probate judge, violate the constitutional provisions hereinbefore referred to. It is also objected that the order denying the appeal is contrary to the provisions of the Probate Act.

A motion has been filed here by appellee to transfer the cause to the Appellate Court on the ground that the record presents no constitutional question. Appellee argues in support of that motion that the order appealed from contains no ruling or decision of the trial court as to any constitutional question and that, therefore, none is presented, and that the sole question is the validity of the decree or judgment. It is apparent from what we have stated that a constitutional question was raised and that the trial court necessarily passed upon it in dismissing the petition. The motion to transfer is denied.

The question raised on this appeal is whether the appellants have an appealable interest in a case of this kind. The probate court and the circuit court held that they do not. Section 330 of the Probate Act of 1939, in effect in 1940 (Ill.Rev.Stat.1939, chap. 3, par. 484, p. 129), provides in part: ‘An appeal from any other order, judgment, or decree of the probate court [other than orders pertaining to the sale of real estate as provided in section 329 of the Probate Act] may be taken by any person who considers himself aggrieved to the circuit court by the filing in, and the...